{"id":200758,"date":"1993-03-05T00:00:00","date_gmt":"1993-03-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/moti-ram-vs-param-dev-and-anr-on-5-march-1993"},"modified":"2018-01-21T19:43:25","modified_gmt":"2018-01-21T14:13:25","slug":"moti-ram-vs-param-dev-and-anr-on-5-march-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/moti-ram-vs-param-dev-and-anr-on-5-march-1993","title":{"rendered":"Moti Ram vs Param Dev And Anr on 5 March, 1993"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Moti Ram vs Param Dev And Anr on 5 March, 1993<\/div>\n
Equivalent citations: 1993 AIR 1662, \t\t 1993 SCR (2) 250<\/div>\n
Author: S Agrawal<\/div>\n
Bench: Agrawal, S.C. (J)<\/div>\n
           PETITIONER:\nMOTI RAM\n\n\tVs.\n\nRESPONDENT:\nPARAM DEV AND ANR.\n\nDATE OF JUDGMENT05\/03\/1993\n\nBENCH:\nAGRAWAL, S.C. (J)\nBENCH:\nAGRAWAL, S.C. (J)\nPANDIAN, S.R. (J)\n\nCITATION:\n 1993 AIR 1662\t\t  1993 SCR  (2) 250\n 1993 SCC  (2) 725\t  JT 1993 (2)\t251\n 1993 SCALE  (1)803\n\n\nACT:\nRepresentation\tof  the\t Peoples Act  1951  :  Section\t116-\nA--Election petition challenging applicant's election to the\nState  Legislature  Assembly--Allowed--Dissolution  of\t the\nLegislation  of the Legislative Assembly pending  appeal  to\nthis court--Effect of.\nRepresentation\t  of   the   Peoples   Act,    1951--Section\n36(1)(2)--requirement  of the candidate of  being  qualified\nfor  being  chosen to fill the seat on the  date  filed\t for\nscrutiny  of  nomination--Resignation  from  the  office  of\nChairman in far take effect from the date of the date of the\ncommunication  for  the\t Head  of  the\tDepartment  in\t the\nGovernment.\n\n\n\nHEADNOTE:\nFor  election to the Himachal Pradesh  Legislative  Assembly\nfrom 60 Chachiot Assembly Constituency held during February,\n1990, fifteen persons, including the appellant and one Karam\nSingh, filed nomination papers.\t At the time of scrutiny, an\nobjection  was raised against the nomination of Karam  Singh\non  the ground that he was holding the office  of  Chairman,\nHimachal  Pradesh Khadi and village Industries Board,  which\nis an office of porfit within the meaning of Article 191 (1)\n(a) of the Constitution and was, therefore, disqualified for\nbeing  chosen as a member of the legislative Assembly.\t The\nReturning  Officer  upheld the objection  and  rejected\t the\nnomination  of\tKaram  Singh.  The  appellant  was  declared\nelected\t  to   the  Legislative\t Assembly  from\t  the\tsaid\nConstituency.\t His   election\t was   challenged   by\t the\nRespondents  by filing election petitions in the High  Court\nof  Himachal  Pradesh.\tThe High Court found that  the\tsaid\nrejection of nomination of Karam Singh was improper  because\non  the\t date  of scrutiny Karam Singh was  not\t holding  an\noffice\tof profit and for that reason, the election  of\t the\nappellant was set aside.\nThe appellant herein filed the present appeals under section\n116-A  of the Representation of the People Act,\t challenging\nthe judgment of the High Court of Himachal Pradesh.\n251\nDuring\tthe  pendency of the appeals  the  Himachal  Pradesh\nLegislative Assembly was dissolved.\nAfter  considering  the appeals on merits the  Court,  which\ndismissing the appeals,\nHELD : 1. Inspite of the dissolution of the Himachal Pradesh\nLegislative Assembly the question arising for  consideration\ncannot\t be  said  to  have  become  academic  because\t the\ninvalidation of the election of the appellant may give\trise\nto  the liability to refund the allowances received  by\t the\nAppellant. [253G, 255-B]\nLoknath\t Padhan\t v. Birendra Kumar Sahu,<\/a> [1974] 3  SCR\t114,\ndistinguished. [253G]\n2.01.'Resignation'  means the spontaneous relinquishment  of\none's  own right and in relation to an office,\tit  cannotes\nthe  act of giving up or relinquishing the office.  The\t act\nof  relinquishment may be unilateral or bilateral  depending\non the return of the office and the conditions governing it.\n[260F]\n2.02.If\t  the  act  of\trelinquishment\tis   of\t  unilateral\ncharacter, it comes into effect when such act indicating the\nintention  to  relinquish  the\toffice\tis  communicated  to\ncompetent  authority.\tThe  authority to whom\tthe  act  of\nrelinquishment\tis communicated is not required to take\t any\naction and the relinquishment takes effect from the date  of\nsuch  communication  where the resignation  is\tintended  to\noperate in praesenti. [260G]\n2.03.In\t cases\twhere  the act of  relinquishment  is  of  a\nbilateral  character, the communication of the intention  to\nrelinquish, by itself, would not be sufficient to result  in\nrelinquishment of the office and some action is required  to\nbe   taken  on\tsuch  communication  of\t the  intention\t  to\nrelinquish,   e.g.,  acceptance\t of  the  said\trequest\t  to\nrelinquish the office, and in such a case the relinquishment\ndoes  not become effective or operative till such action  is\ntaken. [260H,,261A-B]\n301.  From the provision of Section 7 of the H.P. Khadi\t and\nVillage\t Industries  Board Act, 1966, (the 'Act')  it  would\nappear\tthat  the  act of relinquishment of  the  office  of\nChairman of the H.P. Khadi and Village Industries Board (the\nBoard)\tis unilateral in character and the resignation\tfrom\nthe said office takes effect when it is communicated without\nany\n252\nfurther\t action\t being\trequired to be taken  on  the  same.\nSince  the  Chairman  of  the  Board  is  nominated  by\t the\nGovernment  of\tHimachal Pradesh under Section 4(2)  of\t the\nAct,  resignation  has\talso  to  be  communicated  to\t the\nGovernment  of\tHimachal  Pradesh  i.e.\t the  Head  of\t the\nDepartment  dealing  with  the\tBoard, and  once  it  is  so\ncommunicated   it  takes  effect  from\tthe  date  of\tsuch\ncommunication if the resignation is in praesenti or from the\ndate indicated therein if it is prospective in nature to  be\noperative from a future date. [263G-H, 264A-B]\n3.02.The resignation of Karam Singh as Chairman of the Board\nwas  not  required  to\tbe accepted  by\t the  Government  of\nHimachal  Pradesh.  It became effective on January 31,\t1990\nwhen the letter of resignation was received by the Financial\nCommissioner-cum-Secretary (Industries) to the Government of\nHimachal Pradesh who was the Head of the Department  dealing\nwith the Board and to whom it was addressed. [265D]\n3.03.Since  there  is  no requirement in the  Act  that\t the\nresignation of the Chairman of the Board should be  notified\nin  the Official Gazette as in the case of a member  of\t the\nBoard, it cannot be said that the resignation of Karam Singh\ndid  not  take effect till it was notified in  the  Official\nGazette vide notification dated February 12, 1990. [265E]\nCentral\t Inland\t Water\tTransport  Corporation\tLimited\t and\nAnother\t v. Brojo Nath Ganguly and Anr.,<\/a> [1986] 2  SCR\t273;\nJ.K Cotton Spinning and Weaving Mills Company Ltd. v.  State\nof  U.P.  &  Others, [1990] 3 SCR 523;\tLala  Ram  v.  Gauri\nShanker,  1981 All.  Law 1982; Raj Kumar v. Union of  India,\n[1968] SCR 857; Union of India v. Shri Gopal Chandra Misra &\nOrs.,<\/a>  [1978]  3  SCR 12 at p. 21 and  Glossop\tv.  Glossop,\n1907,2 Ch. 370, Halsburys Law of England 4th Ed., Vol. 7, p.\n316, para 536, relied on. [260D-G, 261G, 262G]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION: Civil Appeal Nos. 2640-41  of
\n1991.\n<\/p>\n
From  the Judgment and Order dated 3.6.1991 of the  Himachal
\nPradesh High Court in Election Petition Nos. 1 & 2 of 1990.
\nA.K.  Ganguli, B.T. Kaul, Sarvesh Bisaria and  S.K.  Bisaria
\nfor the Appellant.\n<\/p>\n
B.   Dutta and R. Sasiprabhu for the Respondents.\n<\/p>\n
253<\/span><\/p>\n
The Judgment of the Court was delivered by
\nS.C. AGRAWAL, J. These appeals have been filed under section
\n116-A  of the Representation of the People Act, 1951.\tThey
\nrelate\tto  election  to the  Himachal\tPradesh\t Legislative
\nAssembly from 60- Chachiot Assembly constituency held during
\nFebruary,  1990.  The appellant was declared elected to\t the
\nLegislative  Assembly  from  the  said\tconstituency.\t His
\nelection was challenged by the respondents in these  appeals
\nby  filing election petitions in the High Court of  Himachal
\nPradesh.  By its judgment dated June 3, 1991, the High Court
\nhas  allowed  the election petitions and has set  aside\t the
\nelection of the appellant on the ground that the  nomination
\nof  one of the candidates, Shri Karam Singh  was  improperly
\nrejected by the returning officer.\n<\/p>\n
The last date for filing the nomination papers was  February
\n2, 1990 and the scrutiny of the nomination papers was  fixed
\nfor  February  5,  1990.   Fifteen  persons,  including\t the
\nappellant and Shri Karam Singh had filed nomination  papers.
\nAt  the time of scrutiny, an objection was raised on  behalf
\nof  one\t of the candidates against the\tnomination  of\tShri
\nKaram Singh on the ground that he was holding the office  of
\nChairman,  Himachal  Pradesh Khadi  and\t Village  Industries
\nBoard,\twhich is an office of profit within the\t meaning  of
\nArticle\t 191(1)(a) of the Constitution and  was,  therefore,
\ndisqualified for being chosen as a member of the Legislative
\nAssembly.   By order dated February 7, 1990,  the  Returning
\nOfficer\t  upheld  the  said  objection\tand   rejected\t the
\nnomination  of\tShri  Karam  Singh.   The  High\t Court\thas,
\nhowever, found that the said rejection of nomination of Shri
\nKaram  Singh  was improper because on the date\tof  scrutiny
\nShri  Karam  Singh was not holding an office of\t profit\t and
\nhas,  for  that\t reason,  set  aside  the  election  of\t the
\nappellant.\n<\/p>\n
Before we proceed to deal with the appeals on merits, it may
\nbe  mentioned  that  during the pendency  of  these  appeals
\nbefore this court, the Himachal Pradesh Legislative Assembly
\nhas  been dissolved.  This raises the question\twhether\t the
\nmatters\t in issue in these appeals have ceased to be  living
\nissues\tand  have  become wholly academic.   The  effect  of
\ndissolution of the legislature on a pending election  appeal
\nhas  been  considered  by this court in\t Loknath  Padhan  v.
\nBirendra  Kumar Sahu,<\/a> [1974] 3 SCR 114.\t In that  case,\t the
\nelection of the returned candidate was challenged before the
\nHigh  Court  on\t the  ground that  there  was  a  subsisting
\ncontract entered into
\n254<\/span>
\nby  the respondent in the course of his trade  and  business
\nwith  the  State  Government  for  the\texecution  of  works
\nundertaken   by\t the  Government  and  he  was,\t  therefore,
\ndisqualified  under section 9A of the Representation of\t the
\nPeople\tAct,  1951.   The election  petition  was,  however,
\ndismissed by the High Court and while the appeal against the
\nsaid  decision\twas pending in this Court,  the\t Legislative
\nAssembly was dissolved.\t A preliminary objection was  raised
\non  behalf of the respondent to the appeal that in  view  of
\nthe  dissolution of the assembly it was academic  to  decide
\nwhether or not the respondent was disqualified under section
\n9A.   Upholding the said preliminary objection,\t this  court
\nhas  held that the court should not undertake to  decide  an
\nissue unless it is a living issue between the parties and if
\nan issue is purely academic, in that its decision one way or
\nthe  other  would  have no impact on  the  position  of\t the
\nparties,  it  would be waste of public time and\t indeed\t not
\nproper exercise of authority for the court to engage  itself
\nin deciding it.\t In that case, this court drew a distinction
\nbetween\t a case where the challenge to the election is on  a
\nground\tconfined to the validity of that election  only\t and
\nhaving\tno  consequences  operating in\tfuture\tand  a\tcase
\ninvolving challenge to the election on a ground which  would
\nentail\telectoral disqualification for the future, such\t as,
\ncharge\tof  corrupt  practice.\t It was\t held  that  if\t the
\nelection  is  challenged on the ground of  commission  of  a
\ncorrupt\t practice the dissolution of the  legislature  would
\nnot have any effect on the pendency of an election  petition
\nor  an appeal arising therefrom and the said  petition\twill
\nhave  to be considered on its merits whereas a challenge  to
\nthe  election  on  any other ground which  does\t not  entail
\nfuture disqualification would raise academic issue only\t and
\nin  view of the dissolution of the legislature the  election
\npetition  or the appeal arising therefrom would not  survive
\nbecause it would be futile and meaningless for the court  to
\ndecide\tan academic question the answer to which  would\t not
\naffect the position of one party or the other.
\nAlthough in the instant case the election is not  challenged
\non  the ground of commission of any corrupt practice  and  a
\nfinding\t would not result in electoral\tdisqualification  in
\nfuture\tbut-  the  present case differs\t from  the  case  of
\nLoknath\t Padhan v. Birendra Kumar Sahu<\/a> (supra) in the  sense
\nthat  in Loknath’s case the election petition was  dismissed
\nwhereas\t in the present case the election petitions  against
\nthe  election  of the appellant have been  allowed  and\t the
\nelection has been set aside.  It has been submitted by\tShri
\nA.K. Ganguli, the learned Senior counsel appearing on behalf
\nof the appellant, that in view of the fact that the decision
\nof the High
\n255<\/span>
\nCourt  setting\taside  his election, the  appellant  may  be
\nrequired  to  refund  the various  allowances  that  he\t has
\nreceived  while\t he  was  functioning as  a  member  of\t the
\nLegislative Assembly after his election till the decision of
\nthe  High Court.  It would thus appear that invalidation  of
\nthe election of the appellant may give rise to the liability
\nto  refund  the allowances received by the  appellant  as  a
\nmember\tof the Legislative Assembly.  It cannot,  therefore,
\nbe said that the question a rising for consideration in this
\nappeal\t are   purely\tacademic  in   nature.\t  In   these
\ncircumstances, it becomes necessary to go into the merits of
\nthese appeals.\n<\/p>\n
The  relevant  facts  relating\tto  the\t rejection  of\t the
\nnomination of Shri Karam Singh are as under.
\nThe  Himachal  Pradesh Khadi and  Village  Industries  Board
\n(hereinafter   referred\t to  as\t ‘the  Board’).\t  has\tbeen
\nestablished  by\t the Government of  Himachal  Pradesh  under
\nSection\t 3 of H.P. Khadi and Village Industries\t Board\tAct,
\n1966  (hereinafter  referred to as ‘the\t Act’).\t  Section  4
\nprovides  for  the constitution of the Board and  in  sub-s.
\n(1),  it  is laid down that the Board shall consist  of\t not
\nless than three and not more than nine members appointed  by
\nthe  Government of Himachal Pradesh after consultation\twith
\nthe  Khadi  and Village Industries Commission  from  amongst
\nnon-officials  who in the opinion of Government of  Himachal
\nPradesh\t have  shown active interest in the  protection\t and
\ndevelopment  of khadi and village industries and  officials.
\nIn  sub-s.  (2)\t of  Section  4\t it  is\t provided  that\t the
\nGovernment of Himachal Pradesh shall after consultation with
\nthe Khadi and Village Industries Commission, nominate one of
\nthe members of the Board to be the Chairman thereof, Section
\n7  makes  provision for resignation of\toffice\tby  members.
\nSection\t 11 provides that the term of office and  terms\t and
\nconditions  of\tservice\t of  the  Chairman,   Vice-Chairman,
\nSecretary  and\tother  members\tshall  be  such\t as  may  be
\nprescribed.  In exercise of the powers conferred by  Section
\n35  of the Act, the Government of Himachal Pradesh has\tmade
\nthe  Himachal  Pradesh Khadi and  Village  Industries  Board
\nRules, 1966 (hereinafter referred to as ‘the Rules’).\tRule
\n3  of the Rules prescribes that a member of the Board  shall
\nhold office for such period not exceeding three years as may
\nbe  prescribed in the notification of his appointment  which
\nshall  be  notified  in the Official Gazette  and  shall  be
\neligible for re-appointment.  Rule 7 provides for salary  or
\nhonorarium  and allowance payable to members.  Sub-rule\t (1)
\nof Rule 7 provides that the Chairman, the Vice-Chairman, the
\nSecretary and other
\n256<\/span>
\nmembers of the Board shall be paid such salary or honorarium
\nand allowances from the funds of the Board as the Government
\nmay  from time to time fix.  In sub- rule (2) of Rule 7,  it
\nis  laid  down\tthat the Chairman,  the\t Vice-Chairman,\t the
\nsecretary  and\tother  members of the Board  shall  also  be
\nentitled  to  draw  travelling\tand  daily  allowances\t for
\njourneys  performed for attending the meetings of the  Board
\nor  for\t the purpose of discharging such duties\t as  may  be
\nassigned  to them by the Board in accordance with the  rules
\nand orders issued by the Government from time to time at the
\nhighest rate admissible to Government servants of Grade 1.
\nBy notification dated September 2, 1982, issued in  exercise
\nof the powers conferred by Rule 7 of the Rules, the Governor
\nof  the Himachal Pradesh, ordered that the Chairman  of\t the
\nBoard shall be entitled to pay and other allowances from the
\nFunds of the Board at the following rates:-\n<\/p>\n
\t      (1)   Pay\/remuneration\/honorarium of Rs.\t1500
\n\t      p.m. (consolidated).\n<\/p><\/blockquote>\n
\t      (2)   Free electricity and water charges\tupto
\n\t      Rs. 1500 per year.\n<\/p><\/blockquote>\n
\t       (3)  Use\t of  a\tcar or\tin  lieu  thereof  a
\n\t      conveyance allowance of Rs. 300 per month.
\n\t      (4)   Telephone  facilities in office  and  at
\n\t      residence.\n<\/p><\/blockquote>\n
\t      (5)   TA\tand medical expenses  admissible  to
\n\t      the officers of Highest First Grade category.\n<\/p><\/blockquote>\n
By  notification  dated December 27, 1986, the\tGovernor  of
\nHimachal  Pradesh  constituted\tthe  Board  with   immediate
\neffect.\t  Under the said order, the Board consisted of\tnine
\nmembers\t including  Shri Karam Singh Thakur.   By  the\tsaid
\norder  the Governor of Himachal Pradesh also nominated\tShri
\nKaram  Singh  Thakur  as Chairman of  the  said\t Board.\t  By
\nnotification dated December 20, 1989, the term of the  Board
\nwas  extended upto December 26, 1990.  On October 18,  1989,
\nShri  Karam  Singh Thakur wrote a letter  to  the  Financial
\nCommissioner-cum-Secterary (Industries) to the Government of
\nHimachal Pradesh wherein it was stated that consequent\tupon
\namendment to Second Proviso to section (1) of section 6B  of
\nthe  Himachal Pradesh Legislative Assembly  (Allowances\t and
\nPension of members) Act, 1971, his pension had been  revised
\nto Rs. 2400 per month with effect from February 4, 1989\t and
\nthat on the basis of the said orders,
\n257<\/span>
\nhe was authorised by the Senior DAG(A&E), Himachal  Pradesh,
\nShimla, by letter dated 6th July, 1989, to draw from  Shimla
\nTreasury the balance pension of Rs. 900 p.m. after adjusting
\nthe  remuneration of Rs. 1500 which he had been\t drawing  as
\nremuneration from the Board and the pension of Rs. 900\tp.m.
\nplus  relief  due  thereon from\t the  Punjab  National\tBank
\nthrough Treasury Officer, Shimla.  By aforesaid letter, Shri
\nKaram  Singh intimated that he now intended not to draw\t the
\nmonthly\t remuneration  of Rs. 1500 p.m. from the  Board\t and
\nthat  instead he would be drawing the gross pension  of\t Rs.
\n2400  p.m. from the Treasury\/Bank and he requested  that  no
\nobjection  of the State Government to the said proposal\t may
\nbe conveyed to him at an early date.  The said proposal made
\nby  Karam Singh was accepted by the Government\tof  Himachal
\nPradesh\t and  by notification dated January 8,\t1990  issued
\nunder  Rule  7(1)  of the Rules, the  Governor\tof  Himachal
\nPradesh\t ordered  that\tthe remuneration of  Rs.  1500\tp.m.
\n(consolidated)\twhich  was payable to the  Chairman  of\t the
\nBoard  shall cease as per the request of the  Chairman\tmade
\nvide  his  letter dated October 18, 1989.   On\tJanuary\t 31,
\n1990,  Shri Karam Singh addressed a Letter to the  Financial
\nCommissioner-cum-Secretary  (Industries) to the Governor  of
\nHimachal Pradesh in the following terms :-\n<\/p>\n
\t      “I  hereby  resign  from\tthe  membership\t and
\n\t      Chairmanship of the Himachal Pradesh Khadi and
\n\t      Village Industries Board.\t The resignation may
\n\t      kindly be accepted with effect from today\t Le.
\n\t      31st January, 1990”.\n<\/p><\/blockquote>\n
On  the basis of the letter of January 31, 1990,  which\t was
\nreceived  on the same day, the matter was processed  in\t the
\noffice of Financial Commissioner-cum-Secretary\t(industries)
\nand it was placed before the Chief Minister for his approval
\nwith  the recommendation that the resignation of Shri  Karam
\nSingh,\tChairman, may be accepted.  The Chief Minister\tgave
\nhis  approval on February 4, 1990.  On February 12, 1990,  a
\nnotification was issued in the following terms :-\n<\/p>\n
\t      “In exercise of the powers vested in him under
\n\t      section  7 of the Himachal Pradesh  Khadi\t and
\n\t      Village\tIndustries  Board  Act,\t 1966,\t the
\n\t      Governor,\t Himachal  Pradesh  is\tpleased\t  to
\n\t      accept  the  resignation of Shri\tKaram  Singh
\n\t      Thakur,  Chairman,  H.P.\tKhadi  and   Village
\n\t      Industries   Board,  Shimla   with   immediate
\n\t      effect”.\n<\/p><\/blockquote>\n
\t      258<\/span><\/p>\n
In  the\t meanwhile, Shri Karam Singh  filed  his  nomination
\npapers\tfor  election to the  Himachal\tPradesh\t Legislative
\nAssembly  from the 60 Chachiot Assembly\t constituency.\t The
\nscrutiny  of the nomination papers was held on\tFebruary  5,
\n1990.\tAn  objection was raised against the  nomination  of
\nShri  Karam Singh on behalf of one of the candidates,  viz.,
\nVir  Singh, on the ground that Shri Karam Singh was  holding
\nan office of profit and was disqualified for being chosen as
\na member of the Legislative Assembly.  Shri Karam Singh\t was
\nnot  present at the time of scrutiny but his proposer,\tShri
\nMani  Ram,  Advocate, was present and he  was  requested  to
\nensure\tthe  appearance\t of  Shri  Karam  Singh\t before\t the
\nReturning  Officer  on February 6, 1990 at  11.00  a.m.\t for
\nhearing him in connection with the objection.  The Returning
\nOfficer also directed Tehsildar (Elections) to enquire\tfrom
\nthe Secretary of the Board about the remuneration and  other
\nallowances  being drawn by Shri Karam Singh in his  capacity
\nas  chairman of the Board.  The report of the Tehsildar\t was
\nplaced\tbefore\tthe  Returning\tOfficer.   Shri\t Mani\tRam,
\nAdvocate,  as proposer of Shri Karam Singh also submitted  a
\nreply  to the Returning Officer on February 6, 1990  wherein
\nit  was\t stated\t that  Karam Singh  had\t resigned  from\t the
\nchairmanship  on 29th or 30th of January 1990 and  that\t the
\nacceptance  of the resignation was not kwown to\t Shri  Karam
\nSingh.\t By  order  dated February 7,  1990,  the  Returning
\nOfficer\t rejected the nomination of Shri Karam Singh on\t the
\nview  that were submission of the resignation unless it\t was
\naccepted, could not be taken as deemed to have been accepted
\nand that Shri Karam Singh was holding an office of profit as
\nhis resignation had not been accepted upto February 5,\t1990
\nwhich  was  the\t date  for scrutiny, and  that\the  was\t not
\neligible  to  seek election as a candiate for  the  Himachal
\nPradesh Legislative Assembly.\n<\/p>\n
Before\tthe  High Court, it was submitted on behalf  of\t the
\npetitioners  in the election petitions (respondents  herein)
\nthat Shri Karam Singh had resigned with effect from  January
\n31,  1990 vide his resignation letter of the said  date\t and
\nthe  said letter takes effect from January 31, 1990  itself.
\nThe  High Court accepted the said contention and  held\tthat
\nthe Act is silent and contains no provision as to how and in
\nwhat manner the resignation of the Chairman of the Board  is
\nto be accepted and therefore the holder thereof could  bring
\nhis  appointment to an end by resigning with effect  from  a
\nparticular  date and he would then be deemed to have  ceased
\nto  be\tChairman from the date\titself\tnotwithstanding\t its
\nacceptance on a later date.  The High Court was,  therefore,
\nof the view that Shri Karam Singh
\n259<\/span>
\nheld no office of profit whatsoever in the Board on the date
\nof  scrutiny, i.e., February 5, 1990 since he  had  tendered
\nhis  resignation  on  January 31,  1990.   The\tHigh  Court,
\nfurther, found that in view of the letter dated October\t 18.
\n1989  sent  by\tShri Karam Singh conveying  his\t request  of
\ngiving\t up   the  remuneration\t of  Rs.  1500\t per   month
\n(consolidated)\twhich  request\twas accepted  by  the  State
\nGovernment  as\tpet  notification  dated  January  8,  1990,
\npursuant to which Shri Karam Singh ceased to be entitled  to
\ndraw  the  abovementioned  remuneration\t with  effect\tfrom
\nJanuary\t 8,  1990,  Shri Karam Singh  was  not\tentitled  to
\nremuneration  which could be classified as `profit’ for\t the
\noffice\tof  Chairman  of the Board held\t by  him  and  after
\nJanuary 8, 1990, it could not be said that Shri Karam  Singh
\nwas   holding  an  office  of  profit  and   therefore\t the
\ndisqualification for membership of the Legislative  Assembly
\nof  Himachal  Pradesh  could not attach\t to  him.   For\t the
\nreasons\t aforesaid, the High Court held that the  nomination
\nof  Shri Karam Singh was wrongly rejected by  the  Returning
\nOfficer.\n<\/p>\n
Shri Ganguli has assailed the findings recorded by the\tHigh
\nCourt  on  both\t the questions whereas Shri  B.\t Datta,\t the
\nlearned\t senior\t counsel appearing for the  respondents\t has
\nsupported the said findings.\n<\/p>\n
It is not disputed that in view of the amendment  introduced
\nin   clause  (a)  of  sub-s.  (2)  of  Section\t36  of\t the
\nRepresentation\tof the People Act, 1951 by Act 40  of  1961,
\nthe  relevant date for determining whether a  candidate\t was
\nqualified or disqualified for being chosen to fill the\tseat
\nunder  the  various  provisions\t of  Constitution  mentioned
\ntherein,  including  Article  191, is  the  date  fixed\t for
\nscrutiny of nominations.  In the instant case the said\tdate
\nwas  February  5,  1990.  It  is,  therefore,  necessary  to
\ndetermine whether Shri Karam Singh was holding an office  of
\nprofit on February 1990.\n<\/p>\n
In  view  of the findings recorded by the  High\t Court,\t the
\nfollowing questions arise for consideration.
\n(1)  Did  Shri\tKaram  Singh cease to  hold  the  office  of
\nChairman of the Board on January 31. 1990 the date on  which
\nhe  submitted  his resignation from the said  office  or  on
\nFebruary 12, 1990 when the notification about acceptance  of
\nhis  resignation  with immediate effect was  issued  by\t the
\nGovernment of Himachal Pradesh?\n<\/p>\n
(2)  Did  the office of Chairman of the Board held  by\tShri
\nKaram
\n260\t\t      .\n<\/p>\n
Singh  cease  to  be an office of profit  with\teffect\tfrom
\nJanuary 8, 1990 in view of the notification of the said date
\nwhereby\t the  remuneration of Rs. 1500\tp.m.  (consolidated)
\npayable\t to  the  Chairman of the Board\t had  ceased  to  be
\npayable to Shri Karam Singh?\n<\/p>\n
Shri  Ganguli has urged that the resignation of\t Shri  Karam
\nSingh  from  the office of Chairman of the  Board  could  be
\neffective  only\t after it was accepted by  the\tGovernor  of
\nHimachal  Pradesh who had nominated him to the\tsaid  office
\nand till the acceptance of the said resignation, Shri  Karam
\nSingh  continued to hold the office of the Chairman  of\t the
\nBoard.\tThe submission of Shri Ganguli is that acceptance of
\na  resignation is necessary before it can be  effective\t and
\nsince in the present case the resignation was accepted\tonly
\nby  notification dated February 12, 1990, Shri\tKaram  Singh
\ncontinued as Chairman of the Board till that date and he was
\nholding that office on the date of scrutiny, i.e., February,
\n5,  1990.   In support of this submission Shri\tGanguli\t has
\nplaced\treliance on the decisions of this Court\t in  Central
\nInland\tWater Transport Corporation Limited and\t Another  v.
\nBrojo Nath Ganguly and Anr.,<\/a> [1986] 2 SCR 278 and J.K Cotton
\nSpinning  and Weaving Mills Company Ltd. v. State of U.P.  &
\nOthers.,  (19901  3 SCR 523 as well as the decision  of\t the
\nAllahabad  High\t Court in Lala Rain v. Gauri  Shanker,\t1981
\nAll.   Law  1982.   Having  carefully  considered  the\tsaid
\ncontention of Shri Ganguli we find it difficult to accede to
\nit.\n<\/p>\n
As  pointed  out  by this  court,  ‘resignation’  means\t the
\nspontaneous  relinquishment  of\t one’s\town  right  and\t  in
\nrelation  to an office, it connotes the act of giving up  or
\nrelinquishing  the  office.  It has been held  that  in\t the
\ngeneral\t juristic sense, in order to constitute\t a  complete
\nand  operative\tresignation there must be the  intention  to
\ngive up or relinquish the office and the concomitant act  of
\nits relinquishment.  It has also been observed that the\t act
\nof  relinquishment  may\t take different forms  or  assume  a
\nunilateral  or bilateral character, depending on the  nature
\nof the office and the conditions governing it. (See :  Union
\nof India v. Shri Gopal Chandra Misra & Ors.,<\/a> [1978] 3 SCR 12
\nat  p. 21).  If the act of relinquishment is  of  unilateral
\ncharacter, it comes into effect when such act indicating the
\nintention  to relinquish the office is communicated  to\t the
\ncompetent  authority.\tThe  authority to whom\tthe  act  of
\nrelinquishment\tis communicated is not required to take\t any
\naction and the relinquishment takes effect from the date  of
\nsuch  communication  where the resignation  is\tintended  to
\noperate in prasenti.  A resignation may also be\t prospective
\nto be operative
\n261<\/span>
\nfrom  a future date and in that event it would\ttake  effect
\nfrom  the  date indicated therein and not from the  date  of
\ncommunication.\tIn cases where the act of relinquishment  is
\nof a bilateral character, the communication of the intention
\nto relinquish, by itself, would not be sufficient to  result
\nin relinquishment of the office and some action is  required
\nto  be\ttaken  on such communication  of  the  intention  to
\nrelinquish,   e.g.,  acceptance\t of  the  said\trequest\t  to
\nrelinquish the office, and in such a case the relinquishment
\ndoes  not become effective or operative till such action  is
\ntaken.\tAs to whether the act of relinquishment of  anoffice
\nis  unilateral or’ bilateral in character would depend\tupon
\nthe nature of the office and conditions governing it.
\nUnder  the Constitution of India there are  various  offices
\nwhich can be relinquished by unilateral act of the holder of
\nthe  office and acceptance of resignation is  not  required,
\ne.g.,  President [Article 56(a)].   Vice-President  [Article
\n67(a)],\t Deputy\t Chairman of Rajya  Sabha  [Article  90(b)],
\nSpeaker\t and  Deputy Speaker of Lok Sabha  [Article  94(b)],
\nJudge  of the Supreme Court [Article 124(2)(a)], Judge of  a
\nHigh  Court  [Article  217 (1)(a)].  As\t regards  member  of
\neither\tHouse  of  Parliament  or a member  of\ta  House  of
\nLegislature of a State, originally, the position was that he
\ncould resign his office by unilateral act and the acceptance
\nof  resignation\t was  not  required.   The  requirement\t  of
\nacceptance  of such resignation was introduced\tin  Articles
\n101(3)(b)  and\t190(3)(b) by the  Constitution\t(ThirtyThird
\nAmendment) Act, 1974.  Similarly in company law, a  director
\nof  a  company is entitled to relinquish his office  at\t any
\ntime  he  pleases  by  proper  notice  to  the\tcompany\t and
\nacceptance of the resignation is not required. [See: Glossop
\nv. Glossop, (1907) 2 Ch 370, Halsbury’s Law of England,\t 4th
\nEd., Vol. 7, p. 316, para 536].\n<\/p>\n
A  contract  of employment, however, stands on\ta  different
\nfooting\t wherein the act of relinquishment is  of  bilateral
\ncharacter  and resignation of an employee is effective\tonly
\non  acceptance\tof  the same by the  employer.\t Insofar  as
\nGovernment  employees  are  concerned,\tthere  are  specific
\nprovisions in the Service rules which require acceptance  of
\nthe  resignation before it becomes effective.  In Raj  Kumar
\nv. Union of India, [1968] 3 SCR 857, it has been held
\n\t       “But when a public servant has invited by his
\n\t      letter  of  resignation determination  of\t his
\n\t      employment, his services
\n\t      262<\/span>
\n\t      normally\tstand  terminated from the  date  on
\n\t      which the letter of resignation is accepted by
\n\t      the appropriate authority, and in the  absence
\n\t      of any law or rule governing the conditions of
\n\t      his  service to the contrary, it will  not  be
\n\t      (,pen  to the public servant to  withdraw\t his
\n\t      resignation  after  it  is  accepted  by\t the
\n\t      appropriate  authority.  Till the\t resignation
\n\t      is  accepted by the appropriate  authority  in
\n\t      consonance   with\t the  rules  governing\t the
\n\t      acceptance,  the public servant concerned\t has
\n\t      locus   paenitentiae  but\t  not\tthereafter”.\n<\/p>\n
\t      (p.860)
\nSimilarly,  in\tCentral Inland Water  Transport\t Corporation
\nLtd.  and Anr. v. Brojo Nath Ganguly and Anr.<\/a> (supra)  which
\nrelated\t to an employee of a Government company jointly\t and
\nwholly\towned  by  the\tCentral\t Government  and  two  State
\nGovernments, it was observed
\n\t      “A resignation by an employee would,  however,
\n\t      normally\t require  to  be  accepted  by\t the
\n\t      employer in order to be effective.  It can  be
\n\t      that  in\tcertain\t circumstances\tan  employer
\n\t      would  be justified in refusing to accept\t the
\n\t      employee’s resignation as, for instance,\twhen
\n\t      an employee wants to leave in the middle of  a
\n\t      work which is urgent or .important and for the
\n\t      completion   of\twhich\this   presence\t and
\n\t      participation  a necessary.  An  employer\t can
\n\t      also  refuse  to accept the  resignation\twhen
\n\t      there   is  a  disciplinary  inquiry   pending
\n\t      against  the  employee.  In such\ta  case,  to
\n\t      permit an employee to resign would be to allow
\n\t      him to go away from the service and escape the
\n\t      consequences of an adverse finding against him
\n\t      in such an inquiry.  There be justified in not
\n\t      accepting\t the resignation  of  an  employee”.
\n\t      (p.386)
\n The  same view was reiterated in J.K. Cotton  Spinning\t and
\nWeaving\t Mills Company Ltd. v. State of U.P. & Ors.  (Supra)
\nwhich also relates to a contract of employment.
\nThe  question  whether the resignation of Shri\tKaram  Singh
\nfrom the office of Chairman of the Board was required to  be
\naccepted  before it became effective involves  the  question
\nwhether the act of relinquishment
\n263<\/span>
\nof  the\t office of Chairman is unilateral  or  bilateral  in
\ncharacter.  In order to answer this question it is necessary
\nto  consider  the relevant provisions of the Act.   The\t Act
\ndoes not contain any provision for resignation of the office
\nof  Chairman  of the Board but in Section 7,  the  following
\nprovision  has been made with regard to the  resignation  of
\noffice by members
\n\t      “7.  Resignation\tof office  by  members\t Any
\n\t      member may resign, his office by giving notice
\n\t      in  writing  to  the  Government\tof  Himachal
\n\t      Pradesh\tand,  on  such\t resignation   being
\n\t      notified\tin  the\t Official  Gazette  by\t the
\n\t      Government  of  Himachal\tPradesh,  shall\t  be
\n\t      deemed to have vacated his office”.\n<\/p>\n
In the aforesaid provision, there is no requirement that the
\nresignation of a member should be accepted by any authority.
\nWhat  is required is that a member who wishes to resign\t his
\noffice\tas  member  should give notice\tin  writing  to\t the
\nGovernment  of Himachal Pradesh and such  resignation  takes
\neffect\twhen it is notified in the official gazette  by\t the
\nGovernment of Himachal Pradesh.\t This indicates that the act
\nof relinquishment of the office of a member of the Board  is
\nbilateral  in character in as much as the resignation  takes
\neffect\tonly  when  such  resignation  is  notified  in\t the
\nOfficial  Gazette  by the Government  of  Himachal  Pradesh.
\nThere is no such requirement for relinquishing the office of
\nChairman of the Board.\tSection 4(2), however, provides that
\nthe  Chairman of the Board has to be nominated from  amongst
\nthe  members of the Board.  This means that the Chairman  of
\nthe  Board  holds office so long as he is a  member  of\t the
\nBoard  and if he ceases to be a member of the Board he\talso
\nceases to be the chairman of the Board.\t But the converse is
\nnot true.  A Chairman of the Board may resign his office  as
\nChairman  but  may continue as member of the  Board.  If  he
\nresigns only from the office of Chairman of the Board, there
\nis  no requirement that such resignation should be  accepted
\nby any authority or that any other action is required to  be
\ntaken  for the said resignation to be effective.  It  would,
\ntherefore,  appear  that the act of  relinquishment  of\t the
\noffice\tof Chairman of the Board is unilateral in  character
\nand  the resignation from the said office takes effect\twhen
\nit is communicated without any further action being required
\nto be taken on the same.  Since the Chairman of the Board is
\nnominated  by  the  Government\tof  Himachal  Pradesh  under
\nSection 4(2) of the Act, resignation has
\n264<\/span>
\nalso  to  be  communicated to  the  Government\tof  Himachal
\nPradesh\t i.e., the Head of the Department dealing  with\t the
\nBoard,\tand once it is so communicated it takes effect\tfrom
\nthe  date  of such communication if the\t resignation  is  in
\npresenti  or  from  the\t date indicated\t therein  if  it  is
\nprospective  in nature to be operative from a  future  date.
\nThis  means that the act of relinquishment of the office  of
\nChairman of the Board differs from the act of relinquishment
\nfrom  the office of a Member of the Board in the sense\tthat
\nwhile  the  act of relinquishment of office of a  Member  is
\nbilateral  in  character requiring certain  action,  namely,
\nresignation  being notified in the Official Gazette  by\t the
\nGovernment of Himachal Pradesh before it comes into  effect,
\nthe  act of relinquishment of the office of Chairman of\t the
\nBoard  is unilateral in character.  The decisions  on  which
\nreliance  has  been  placed  by\t Shri  Ganguli\trelating  to
\ncontracts of employment where the act of relinquishment\t has
\nbeen held to be bilateral in character requiring  acceptance
\nof  the resignation, can, therefore, have no application  to
\nthe  present  case where the act of  relinquishment  of\t the
\noffice of Chairman of the Board is unilateral in character.
\nThree possible situations involving resignation by a  person
\nholding the office of Chairman of the Board can be envisaged
\n:\n<\/p>\n
(i)  He\t may resign only from the office of the Chairman  of
\nthe Board.  In such a case if the resignation is in presenti
\nit  would take effect from the date of communication of\t the
\nresignation to the Head of the Department in the  Government
\nof  Himachal Pradesh it would take effect from the  date  as
\nindicated  in  the said resignation if\tthe  resignation  is
\nprospective to be operative from a future date.\n<\/p>\n
(ii)He may resign only from the office of the member of\t the
\nBoard.\tThis resignation would take effect from the date the
\nresignation  is\t notified  in the Official  Gazette  by\t the
\nGovernment of Himachal Pradesh and with effect from the said
\ndate  the Chairman would cease to be a member of the  Board.
\nSince  a  person cannot continue as Chairman  of  the  Board
\nafter  he has ceased to be a member of the Board,  he  would
\nalso cease to be the Chairman of the Board from the date  of
\nhis  resignation as member of the Board is notified  in\t the
\nOfficial Gazette by the Government of Himachal Pradesh.\n<\/p>\n
(iii)He\t may resign both from the office of Chairman of\t the
\nBoard
\n265<\/span>
\nas well as from the office of member of the Board.  In\tsuch
\na  case, his resignation from the office of Chairman of\t the
\nBoard  would take effect from the date of  communication  to
\nthe  Head  of the Department in the Government\tof  Himachal
\npradesh\t if it is it? praesenti or from the  date  indicated
\ntherein\t if it is prospective to be operative from a  future
\ndate.\tHe  would, however, continue to be a member  of\t the
\nBoard  till  his resignation from the office  of  member  is
\nnotified  in  the  Official Gazette  by\t the  Government  of
\nHimachal Pradesh under Section 7 of the Act.
\nThe  instant case falls in the third category  because\tShri
\nKaram Singh, by his letter dated January 31, 1990,  resigned
\nfrom the office of member as well as the office of  Chairman
\nof the Board and wanted the resignation to be accepted\twith
\neffect\tfrom  the  same day, i.e.,  January  31,  1990.\t  By
\nnotification  dated February 12, 1990, it was notified\tthat
\nthe  resignation of Shri Karam Singh Thakur, as Chairman  of
\nthe  Board  has been accepted by the  Governor\tof  Himachal
\nPradesh\t with  immediate effect.  In our opinion,  the\tsaid
\nnotification  dated  February  12, 1990,  proceeds  under  a
\nmisconception\tof   the  correct   legal   position.\t The
\nresignation of Shri Karam Singh as Chairman of the Board was
\nnot  required to be accepted by the Government\tof  Himachal
\nPradesh.   It became effective on January 31, 1990 when\t the
\nletter\t of  resignation  was  received\t by  the   Financial
\nCommissioner-cum-Secretary (Industries) to the Government of
\nHimachal Pradesh who was the Head of the Department  dealing
\nwith the Board and to whom it was addressed.  Since there is
\nno  requirement\t in  the Act that  the\tresignation  of\t the
\nChairman  of  the Bord should be notified  in  the  Official
\nGazette\t as in the case of a member of the Board, it  cannot
\nbe  said  that the resignation of Shri Karam Singh  did\t not
\ntake  effect  till it was notified in the  official  gazette
\nvide notification dated February 12, 1990.
\nThe High Court was, therefore, right in taking the view that
\nShri  Karam  Singh  had ceased to hold\tthe  office  of\t the
\nChairman  of the Board having resigned from the said  office
\non  January  31,  1990,\t and  the  said\t resignation  became
\neffective  from\t that date itself and that on  the  date  of
\nscrutiny,  i.e.,  February 5, 1990, he was  not\t holding  an
\noffice of profit.  For that reason, it has been rightly held
\nthat  the  nomination  of Shri Karam  Singh  was  improperly
\nrejected by the Returning Officer.\n<\/p>\n
Since  we are in agreement with the view of the\t High  Court
\nthat the nomination of Shri Karam Singh had been  improperly
\nrejected for the
\n266<\/span>
\nreason that he was not holding the office of the Chairman of
\nthe  Board  on the date of scrutiny, we do not\tconsider  it
\nnecessary  to  go into the question whether  the  office  of
\nChairman of the Board held by Shri Karam Singh had ceased to
\nbe an office of profit after January 8, 1990.
\nThe   appeals,\t therefore,  fail  and\t are,\taccordingly,
\ndismissed: But in the circumstances with no orders to costs.
\nB.V.B.D.\n<\/p>\n
Appeals dismissed.\n<\/p>\n
263<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Moti Ram vs Param Dev And Anr on 5 March, 1993 Equivalent citations: 1993 AIR 1662, 1993 SCR (2) 250 Author: S Agrawal Bench: Agrawal, S.C. (J) PETITIONER: MOTI RAM Vs. RESPONDENT: PARAM DEV AND ANR. DATE OF JUDGMENT05\/03\/1993 BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) PANDIAN, S.R. (J) CITATION: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-200758","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMoti Ram vs Param Dev And Anr on 5 March, 1993 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/moti-ram-vs-param-dev-and-anr-on-5-march-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Moti Ram vs Param Dev And Anr on 5 March, 1993 - 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